Charles R. Bailey

Bailey & Wyant, P.L.L.C. Charleston, West Virginia

August 13, 2012

Public-Employee Privacy Rights in the Age of Social Networking • Technology has greatly increased the ability of employers to monitor

employees both inside and outside of the workplace. At the same time, technologies such as smart phones have blurred the lines between personal and business, allowing employees to work from home and conduct personal matters at work.

• Social networking sites such as Facebook and Twitter present particularly pressing privacy questions because they integrate several services: e-mail like communication, photographs, and instant messaging.

• Oftentimes, social networking sites allow users to post items “privately” or to a select list of “friends” or contacts. This further blurs the line between public and private and creates difficult questions regarding the reasonable expectations of privacy and consent for public employees.

Public-Employee Privacy Rights in the Age of Social Networking The Pew Research Center released data in February

2012 indicating that 66% of online adults use social networking sites.

In recent years Employers have increasingly sought to monitor and screen current and potential employees through private e-mail accounts and social media networking sites.

Public-Employee Privacy Rights in the Age of Social Networking Public employees are granted more protections

regarding their privacy rights than private employees The First Amendment of the United States Constitution

– protects public employees’ right to freedom of speech. A public employee’s speech may be protected if it (1) pertains

to a matter of public concern and (2) the employee is speaking as a citizen rather than an employee.

If these facts have been met, a reviewing court will conduct a balancing test to determine whether the public employer’s interest in maintaining an effective, non-disruptive workplace outweighs the public employee’s right to speak freely. If these factors have not been met, free speech protections do not apply.

Public-Employee Privacy Rights in the Age of Social Networking The Fourth Amendment of the United States Constitution

protects public employees from unreasonable searches and seizures. Searches and seizures by government employers or

supervisors of the private property of their employees are subject to the restraints of the Fourth Amendment.

“[T]he touchstone of the Fourth Amendment is reasonableness.” United States v. Kriesel, 508 F.3d 941, 947 (9th Cir. 2007).

In determining reasonableness, courts look at “the totality of the circumstances to determine whether a search is reasonable.” United States v. Kriesel, 508 F.3d 941, 947 (9th Cir. 2007)

Public-Employee Privacy Rights in the Age of Social Networking “The reasonableness of a search is determined by assessing, on the one hand,

the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interest.” United States v. Knights, 534 U.S. 112, 118-19 (2001).

However, courts must take into account “[t]he operational realities of the workplace,” which “may make some employees’ expectations of privacy unreasonable.” O’Connor v. Ortega, 480 U.S. 709, 715 (1987).

For example, “[p]ublic employees’ expectations of privacy in their offices, desks, and file cabinets…may be reduced by virtue of actual office practices and procedures, or by legitimate regulation.” O’Connor v. Ortega, 480 U.S. 709, 715 (1987).

Courts have found that the question of whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis. O’Connor v. Ortega, 480 U.S. 709, 718 (1987).

Public-Employee Privacy Rights in the Age of Social Networking Even if an employee has a reasonable expectation of privacy in

the item seized or the area searched, he must also demonstrate that the search was unreasonable to prove a Fourth Amendment violation.

Courts have held that “public employer intrusions on the constitutionally protected privacy interests of governmental employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.” O’Connor v. Ortega, 480 U.S. 709, 725-26 (1987).

The search must be “justified at its inception,” and “reasonably related in scope to the circumstances which justified the interference in the first place.” O’Connor v. Ortega, 480 U.S. 709, 726 (1987).

Public-Employee Privacy Rights in the Age of Social Networking • Public Employees’ Right to Privacy in the Age of

Facebook, Twitter, and Text Messaging • City of Ontario, Cal. v. Quon, 130 S. Ct. 2619 (2010) -- the

Supreme Court of the United States Considered the limits of public-employee monitoring and the effect of employee monitoring policies.

• Basic issue of the Quon case – whether government employees have a constitutional right to keep text messages private.

Public-Employee Privacy Rights in the Age of Social Networking Relevant facts of Quon – the City of Ontario’s police department

issued pagers to its SWAT team members, and warned the members that they would be responsible for any charges incurred for use in excess of the contractual agreement.

Official department policy stated that it had the right to monitor “network activity including email and Internet use” and that officers “should have no expectation of privacy” in those communications.

However, the lieutenant who administered the pagers had an informal policy of not examining officers’ messages as long as they voluntarily paid for charges incurred for excessive use.

Sergeant Jeff Quon, a member of the City of Ontario’s SWAT team exceeded the permitted use several times, but voluntarily paid for the charges each time.

Public-Employee Privacy Rights in the Age of Social Networking The City of Ontario’s Police Chief later ordered the

lieutenant to obtain transcripts of pager use for certain officers, including Sergeant Quon, who repeatedly exceeded the permitted use.

A review of the transcripts demonstrated that Sergeant Quon had exchanged hundreds of personal text messages, many of them sexually explicit messages between Sergeant Quon and both his wife and another woman.

Sergeant Quon and three other individuals with whom he had exchanged text messages sued the City of Ontario, alleging a violation of privacy rights under the Fourth Amendment of the United States Constitution and the California Constitution.

Public-Employee Privacy Rights in the Age of Social Networking Reversing a judgment for the City of Ontario at the trial-

court level, the Ninth Circuit held that the plaintiffs’ rights to privacy under the federal and state constitutions had been violated because the search was not reasonable in scope.

On petition for a writ of certiorari to the Supreme Court of the United States, the City of Ontario asked the Court to decide the scope of the various plaintiffs’ reasonable expectations of privacy in the text messages, including the effect of seemingly contradictory formal and informal policies.

The petition also asked the Court to resolve a conflict among the circuit courts of appeals on whether a “less intrusive means” analysis was appropriate.

Public-Employee Privacy Rights in the Age of Social Networking The Supreme Court of the United States declined to rule on

whether or not Sergeant Quon had a reasonable expectation of privacy in his text messages.

The Court cited swiftly changing technology as a reason for its failure to answer that question, saying “[r]apid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.” City of Ontario, Cal. v. Quon, 130 S.Ct. 2619 (2010).

Public-Employee Privacy Rights in the Age of Social Networking Thus, for the purposes of its holding in Quon, the

Court assumed that Sergeant Quon had a reasonable expectation of privacy in his text messages, that the City of Ontario’s review of the transcript constituted a Fourth Amendment search, and that the principles applicable to a government employer’s search of an employee’s physical office apply as well in the electronic sphere. City of Ontario, Cal. v. Quon, 130 S.Ct. 2619 (2010).

Public-Employee Privacy Rights in the Age of Social Networking The Quon Court then turned on whether or not the

search itself was reasonable and found that it was because it was motivated by a legitimate work-related purpose, and because it was not excessive in scope.

Thus, the Court found that there were “reasonable grounds for [finding it] necessary for a noninvestigatory work-related purpose,” as the Police Chief had ordered the audit to determine whether the City of Ontario’s contractual character limit was sufficient to meet the City’s needs. City of Ontario, Cal. v. Quon, 130 S.Ct. 2619, 2623 (2010).

Public-Employee Privacy Rights in the Age of Social Networking Although Sergeant Quon exceeded his monthly allotment

of texts a number of times, the City of Ontario requested transcripts only for August and September 2002 in order to obtain a large enough sample to decide the character limits’ efficacy, and all the messages that Quon sent while off duty were redacted.” City of Ontario, Cal. v. Quon, 130 S.Ct. 2619, 2623 (2010).

Additionally, from the City of Ontario’s perspective, the fact that Sergeant Quon likely had only a limited privacy expectation lessened the risk that review would intrude on highly private details of Sergeant Quon’s life.

Public-Employee Privacy Rights in the Age of Social Networking In Bland v. Roberts the United States Court of Appeals for the Fourth Circuit is

considering whether an employee’s “likes” on Facebook is protected by the First Amendment.

The Plaintiffs alleged the Sheriff of Hampton City terminated their employment following his reelection campaign because they supported his opponent through statements on the opponents Facebook page and “liking” the opponents page.

Each of the Plaintiffs claim they supported Sheriff Roberts’ opponent and Sheriff Roberts had knowledge of this support.

The lower court granted summary judgment to the Sheriff, finding that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.”

The court further held that in other cases considering First Amendment speech have considered actual statements made on Facebook as opposed to a simple “liking.” of a page.

A Facebook like is not substantive speech warranting First Amendment protections.

Public-Employee Privacy Rights in the Age of Social Networking Gresham v. City of Atlanta, 2012 U.S. Dist. LEXIS 63603; 95

Empl. Prac. Dec. (CCH) P44, 502; 33 L.E.R. Cas. (BNA) 1431. Gresham was employed as a police officer for the City of

Atlanta who investigated and arrested a forgery suspect at Best Buy.

Following the arrest Gresham posted on Facebook “Who would like to hear the story of how I arrested a forgery perp at Best Buy only to find out later at the precinct that he was the nephew of an Atlanta Police Investigator who stuck her ass in my case and obstructed it?? Not to mention the fact that while he was in my custody, she took him into several other rooms alone before I knew they were related. Who thinks this is unethical??

Public-Employee Privacy Rights in the Age of Social Networking The Office of Professional Standards received a

complaint regarding Gresham’s statements on Facebook, and an investigation concluded Gresham violated Work Rule 4.1.06 (“Criticism”) which prohibited employees from publically criticizing any employee or any order, action, or policy of the Department except as officially required.

While the investigation was ongoing Gresham was ineligible for promotion.

Gresham filed suit asserting she was retaliated against for her statements on Facebook.

Public-Employee Privacy Rights in the Age of Social Networking The Court considered Gresham’s claims that she turned to

Facebook when her allegations were not fully investigated. The Court held this argument was disingenuous because

Gresham posted on Facebook just Seven (7) days after her complaint.

Additionally, the Court held Gresham’s free speech interests did not outweigh the government’s interests in “maintaining unity and discipline within the police department and in preserving public confidence in its abilities.”

Gresham’s statements on Facebook were not protected by the First Amendment.

Public-Employee Privacy Rights in the Age of Social Networking In April 2012, the United States Marine Court discharged a

Sergeant Stein for posting on a page used by Marine Corp meteorologist “Screw Obama and I will not follow his orders.”

Sergeant Stein had also created a Armed Forces Tea Party page on Facebook.

The court determined Sergeant Stein violated the Pentagon policy limiting the speech of service members.

Sergeant Stein specifically violated DoD Directive No. 1344.10, prohibiting participation in a partisan political club (for sponsering the Tea Party Marines Facebook page), and for his disparaging statements about President Obama

Sergeant Stein received an other than honorable discharge.

Public-Employee Privacy Rights in the Age of Social Networking Other Privacy Concerns – Credit Reports

While there is no federal prohibition against the use of credit

reports for employment purposes, it appears that federal regulators may be seeking to curtail the practice.

In December 2010, the Equal Employment Opportunity Commission sued an employer in connection with the use of credit reports in the hiring process.

While the EEOC alleged that the company used credit reports in a way that discriminated against African-American job applicants, in a broader sense the EEOC signaled that it believes that employers are denying jobs to applicants with damaged credit histories in situations where creditworthiness does not appear to be directly related to the job.

Public-Employee Privacy Rights in the Age of Social Networking

The EEOC noted that credit histories are not compiled

to evaluate responsibility, are often inaccurate, and may not be a good indicator of an individual’s qualifications for a particular job.

In addition to other relief, the EEOC is seeking a permanent injunction to stop the sued company’s use of credit histories in hiring and other employment decisions.

Public-Employee Privacy Rights in the Age of Social Networking

Employers’ Use of Social Networking Sites to Make Employment Decisions

Employers have begun to use social networking sites as

part of their background checks on applicants. There is a wealth of information which can be found on an applicant’s Facebook or Twitter page. This can include job attitude, political affiliation, age, and marital status.

Because information posted on social networking sites is generally considered public, and because information posted on web page profiles generally consists of voluntary disclosures, employers are not generally restricted from accessing such information.

Public-Employee Privacy Rights in the Age of Social Networking However, an employer should be aware of two

important caveats: Authentication – everything on the Internet is not

infallibly true and correct An employer CANNOT use information gathered

through social networking to screen out applicants based upon membership in protected classes, such as racial groups, ethnic groups, religious affiliations, etc.

Additionally, because review of candidate profiles on social networking sites is likely to retrieve isolated bits of personal information, the employer who utilizes a search risks making judgments out of context.

Public-Employee Privacy Rights in the Age of Social Networking The United States Congress has two bills pending, the Password

Protection Act and the Social Networking Online Protection Act, which prohibits an employer from requiring or requesting that an employee or prospective employee provide the employer with a user name, password, or any other means of accessing a private e-mail account or social networking website of the employee or prospective employee.

The PPA makes it illegal for an employer to compel or coerce access to any online information stored anywhere on the internet if that information is secured against general public access by the user.

The SNOPA further prohibit the employer from discharging, disciplining, or denying employment or promotion or threatening to take any action against, any employee or prospective employee for declining to provide a username and password, or other means for accessing a private e-mail account or social networking website and provides for an civil penalty up to $10,000.00.

Public-Employee Privacy Rights in the Age of Social Networking Illinois 820 Ill. Comp. Stat. § 55/10 (2012) prohibits

employers from requesting requiring any employee or prospective employee to provide any password or other related account information in order for the employer to access the prospective employee’s account or profile on a social networking website .

The bill does not prohibit an employer from maintaining lawful workplace policies governing the use of employer’s electronic equipment, including policies regarding internet use, social networking site use, and electronic mail use.

However, an employer is not prohibited from accessing information that is in the public domain or that is otherwise obtained in compliance with the statute.

Public-Employee Privacy Rights in the Age of Social Networking Maryland Code Ann., Lab. & Empl. § 3-712 provides that an employer may

not required an employee or prospective employee to disclose any user name, password, other means of accessing a personal account or service through an electronic communications device.

The employer may require an employee to disclose any user name, password, or other means for accessing nonpersonal accounts or services that provide access to the employers internal computer or information systems.

Additionally, the employer may investigate the use of a personal website, internet website, web-based account, or similar account by employee for business purposes to ensure compliance with applicable securities or financial law or regulatory requirements; or to ensure the employee is not engaging in unauthorized downloading of an employer’s proprietary information or financial data to a personal website, internet website, web-based account or similar account.

Public-Employee Privacy Rights in the Age of Social Networking

Other states considering similar legislation includes California, Delaware, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, Ohio, Pennsylvania, South Carolina, and Washington.

Public-Employee Privacy Rights in the Age of Social Networking

Discovery Issues Regarding Employer Monitoring of

Social Networking Sites Romano v. Steelchase, Inc., NO. 2006-2233, 2010 N.Y. Slip

Op. 32645U (Sept. 21, 2010), the Supreme Court of New York, Suffolk County, considered whether a plaintiff alleging permanent physical injuries must turn over to defendants information from her social networking pages relevant to her “activities and enjoyment of life.”

Public-Employee Privacy Rights in the Age of Social Networking

The public portions of the plaintiff ’s Facebook and MySpace

pages showed content that was in direct contradiction to her claims that she had sustained permanent injuries, and defendants sought access to the private portions of her pages in order to gain further contradictory evidence.

The plaintiff used the available privacy settings on Facebook and MySpace to restrict access to only those “friends” she wanted to share information with, but the court found that she could not shield relevant information from disclosure simply because she had adopted privacy settings to restrict access.

Public-Employee Privacy Rights in the Age of Social Networking

The court found that to deny the defendants an

opportunity to access these sites not only would go against the liberal discovery policies in New York favoring pre-trial disclosure, but would condone the plaintiff ’s attempt to hide relevant information behind self-regulated privacy settings.

The court also considered plaintiff ’s argument that production of the “private” portions of her social networking pages would be an invasion of privacy under the Fourth Amendment, and held that production of these portions would not violate her right to privacy, and any such concerns were outweighed by the defendants’ need for the information.

Public-Employee Privacy Rights in the Age of Social Networking

Applying Romano to the employment context, employees

may well lack an expectation of privacy in what they post to their social networking sites, regardless of the privacy settings that they have adopted.

Romano adds to the patchwork of state and federal decisions addressing the privacy issues and discovery implications surrounding employee use of social media.

No clear trend has emerged, and courts continue to grapple with these issues and may reach divergent opinions.

Public-Employee Privacy Rights in the Age of Social Networking In Britain, the Press Complaints Commission, a

voluntary regulatory body for British printed newspapers and magazines, ruled in February 2011 that material published on Twitter should be considered public and can be published.

The PCC made its decision based on a complaint by a Department of Transport official that the use of her “tweets” by newspapers constituted an invasion of privacy.

The official’s message used by newspapers included remarks about her being hungover at work.

Public-Employee Privacy Rights in the Age of Social Networking The official said that she had a clear disclaimer that the views

expressed by her on Twitter were personal and not representative of her employer.

The official argued that she had a reasonable expectation of privacy in her “tweets” but the PCC found that the potential audience for the official’s “tweets” was much wider than her followers because each message could be forwarded by others, known as “retweeting.”

The PCC also agreed with the newspapers’ argument that Twitter was publicly accessible and that the official had not taken steps to restrict access to her messages and was not publishing material anonymously.

Thus, the PCC held that the newspaper articles containing the official’s “tweets” did not constitute a breach of privacy.

Public-Employee Privacy Rights in the Age of Social Networking In Targonski v. City of Oak Ridge the United States District Court for the

Eastern District of Tennessee is considering the Plaintiff ’s harassment, hostile work environment, constructive discharge, disparate treatment, and retaliation claims related to rumors of the Plaintiff ’s sexual orientation and comments by fellow employees regarding the same.

Targonski asserted that she informed her superior officer that Officer Thomas was spreading sexual rumors about her.

Additionally, Targonski asserted that Officer Thomas directly told her that her husband was trying to get Officer Thomas and his girlfriend to have an orgy involving Officer Thomas’ girlfriend and Officer Thomas felt she was a lesbian and wanted to be part of it.

Officer Thomas was transferred to a different shift but the rumors continued. Targonski also complained she received six (6) unwanted telephone calls with

heavy breathing. The investigation traced the number to Officer Thomas’ girlfriend whom the department attempted to interview, however Targonski would not allow the girlfriend to be interviewed unless she was in the room.

Public-Employee Privacy Rights in the Age of Social Networking During this same time period Targonski posted several

messages on her Facebook page. On February 23, 2010, Targonski posted about her

desire for a female friend to join her naked in the hot tub.

The previous day Targonski discussed “naked Twister.” On May 22, 2010, Targonski discussed female orgies

involving Officer Thomas’ girlfriend and others to be filed by Targonski’s husband.

Public-Employee Privacy Rights in the Age of Social Networking In the Order Denying Summary Judgment the Court

held that Targonski’s claims of a sexually objectionable environment must be considered under the totality of the circumstances including the frequency and severity of the alleged conduct, whether the conduct was physically threatening or humiliating as opposed to merely offensive, and whether it interfered with Targonski’s work performance.

The Court found sufficient evidence for the question to be decided by a jury including consideration of Targonski’s Facebook posts.

Public-Employee Privacy Rights in the Age of Social Networking A handful of states have enacted legislation which limits the rights of

employers to take employment actions based upon such off-duty conduct as blogging and Facebook posts (California, New York, Colorado, Montana, and North Dakota).

Even in states where no such statutes have been enacted employers face legal liability for employment decisions based upon off-duty blogging or Facebook posts, such as If the employee blogs or posts about status in a protected class, or a

medical condition, or a religious belief – employment decisions based on these could lead to a discrimination claim.

If the employee blogs or posts about alleged harassment or discrimination at work – employment decisions based on these could lead to a retaliation claim.

If the employee “whistleblows” about alleged company wrongdoing – employment decisions based on these could lead to a retaliation claim.

Public-Employee Privacy Rights in the Age of Social Networking What can, and should, an employer do with regard to

monitoring social networking sites? Example: A soon-t0-be Cisco employee posted the

following “tweet” on Twitter: “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.” A Cisco supervisor saw the “tweet” and “tweeted” back, “Who is the hiring manager? I’m sure they would love to know that you will hate the work. We here at Cisco are well versed in the web.” The job offer was rescinded shortly thereafter.

Public-Employee Privacy Rights in the Age of Social Networking Best Practices of Using Social Networking Sites to

Make Employment Decisions and Minimizing Employer Risk

Courts have not defined the contours of the privacy interest which regard to public employees’ social networking site information; thus, public employees should use caution in their use of social networking sites to make employment decisions.

Public-Employee Privacy Rights in the Age of Social Networking Employers should not rely exclusively, or almost exclusively

on the results from any social network review in making any employment decisions.

Employers should clearly train their managers, and all persons who may be involved in the review and/or decision-making process, of the legal obligation to avoid gathering information which might tend to disclose an applicant’s medical conditions.

Public employers should exercise caution when seeking to access information disclosed by public employees in social media sites and/or disciplining employees for publishing such information.

Public-Employee Privacy Rights in the Age of Social Networking Public employers must strive to find a balance between

protecting their own legitimate business interests and allowing employees the freedom to express their opinions and be themselves, particularly during “non-work” time.

Policies broadly banning a public employee’s statements concerning the public employer should be carefully evaluated.

Public employers should issue policies that provide forewarnings and accurately describe the higher expectations that usually apply to public employees.

Public-Employee Privacy Rights in the Age of Social Networking Any such policies should be narrowly tailored to

address only legitimate, business-related areas, such as restricting disclosure of trade secrets, confidential information, and communications that may violate the public employer’s discrimination and harassment policies.

Public employers should not ask an employee to “friend” another employee or employment applicant for the purpose of finding out information about the other employee or employment applicant.

Public-Employee Privacy Rights in the Age of Social Networking

Even with these safeguards in place, public employers

must be mindful of the employee’s free speech protections and protections from unreasonable searches and exercise caution before disciplining an employee for speech that may be considered protected by the First Amendment of the U.S. Constitution or for conducting a search that may violate the Fourth Amendment of the U.S. Constitution.

Public-Employee Privacy Rights in the Age of Social Networking

THE END

QUESTIONS?